October 03, 2005

Miers vs. Godel

Oh what fun. Get away from the internet all weekend and lo, we have a new Supreme Court nominee. I can't say I'd ever even heard of Harriet Miers, but given that she's White House counsel, I'm guessing Bush just wanted someone who agrees with his own, ahem, "expansive" view of presidential powers in wartime. I suggested a few weeks ago that Bush would never pick Gonzales for this spot, because then both he and Roberts would have to recuse themselves in an upcoming and fairly crucial case on detainee matters, Hamdan v. Rumsfeld, which would leave the fate of Bush's "war on terror" powers in the hands of a pseudo-liberal majority. Nuh-uh. Hence Miers. This seems like an awfully bizarre reason to choose Miers—who is otherwise fairly unqualified—but I can't really see any other. Unless Bush just likes Texans.

But here is what we do know: the pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements - the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard - that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse - or resist the blandishments - that transformed, say, Anthony Kennedy into the judge he is today.

Well I don't think that's so conspiracy-minded; read Jeffrey Toobin's old profile of Anthony Kennedy in the New Yorker and you get a sense that something like that really does go on, if not so venal as Frum suggests. But hey, if the last few bastions of pseudo-liberalism—the press, the universities, the foreigners—can't influence American public opinion, at least they can influence the judges! Still, whatever leftward shifts may come, it does seem that Miers could do lasting damage to the Constitution in her first few years by giving the president the ability to declare whoever he feels like an "enemy combatant," and hold 'em without trial. Also, the elite "pressures on a Supreme Court justice to shift leftward" usually don't include pressure to shift leftward on economic and worker issues: the so-called "liberals" on the court, like Stephen Breyer, are still incredibly business-friendly. But, you know, that's sort of a given by now.

By the way, weird math trivia. When Kurt Godel, mathematician extraordinnaire, etc., applied for U.S. citizenship long, long ago, he took the process very seriously and made a close study of the Constitution to prepare. The night before taking his test, he called a friend in panic and mentioned that he had found a loophole in the Constitution that would allow for a dictatorship. Friend laughed and said best to stick with the basics. Anyway, the day of the test, the judge asked Godel where he was from, he said Austria, the judge said something like, "Well, they have [or have had] a dictatorship over there; here in the United States we could never have such a thing." At which point Godel shouted out, "To the contrary! I can prove it's possible!" before his friends quieted him down. I wonder if he was talking about something like Guantanamo? Or maybe he was talking about the possible self-amendment of Article V of the Constitution (which would then make Article I is amendable; and the Senate could be abolished, etc.). I never found out what he was referring to.